“[Charlie Kirk] won’t be remembered as a hero. He was used to astroturf a movement of white nationalist trailer trash!”
That’s the distasteful perspective one South African national shared after the horrifying assassination of conservative activist Charlie Kirk. He now finds himself among the half-dozen legal visitors to the United States who are having their visas revoked because of their disrespectful and vile posts about Kirk’s death.
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“The United States has no obligation to host foreigners who wish death on Americans,” the State Department wrote in a post trumpeting the revocations. “[We] will defend our borders, our culture, and our citizens by enforcing our immigration laws.”
But the Trump administration is getting multiple things wrong with this approach. You can’t, in fact, protect American culture by betraying its foundational free speech values — and its approach may well violate the First Amendment.
First, it’s worth acknowledging that all of the posts in question are reprehensible. While Kirk’s legacy is complicated, like that of any controversial political figure, there is no justification for slandering a dead man or dancing on his grave. Anyone who engages in such commentary should be ashamed of themselves.
Yet at the same time, no one needs to be “protected” by the government from a few hateful social media posts. These people espousing their awful opinions are not posing any actual threat to Americans’ safety, and suggesting otherwise peddles in the same liberal “safetyism” Republicans have long ridiculed. If they are fulfilling important jobs or roles that otherwise justify their visas, kicking them out of the country over one awful social media post is unwarranted — and un-American.
After all, there’s nothing more American than the idea that we all have the right to say our piece, even if it upsets people. How can anyone square that sentiment with the idea that immigration authorities will forcibly remove people from our country if they say something upsetting?
Republicans often argue against the progressive push to censor “hate speech” by arguing that the answer to bad speech is more speech, not government crackdowns. They’re right, but they are suddenly flip-flopping when it comes to “hate speech” about Charlie Kirk.
The Trump administration’s crackdown is also potentially illegal and in violation of the First Amendment, as looming lawsuits will likely prove.
The Supreme Court has repeatedly held that legal immigrants to the United States are entitled to First Amendment protections. Even the late Supreme Court Justice Antonin Scalia, a conservative legend, agreed that the Bill of Rights applies to noncitizens. And, no matter how despicable these posts are, almost nothing in them is beyond the scope of the First Amendment’s protection. (Almost none of these posts would meet the very narrow legal exceptions for incitement of violence or true threats.)
So, the Trump administration is specifically using government power to punish First Amendment-protected speech. That’s not typically considered constitutional.
You don’t have to take my word for it. Free speech watchdogs from the Knight Institute to the nonpartisan Foundation for Individual Rights and Expression have already blasted the move. (Disclosure: I do a small amount of freelance work with FIRE.)
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“These kinds of visa revocations are censorship, plain and simple,” Knight Institute attorney Carrie DeCell said. “Mere ‘mockery’ can’t be grounds for adverse government action — whether revocation of broadcast licenses or revocation of visas. While the government can revoke visas for many reasons, the First Amendment forbids it from doing so based on viewpoint.”
Even Republican-appointed federal judges have already ruled against the Trump administration in similar cases where it tried to weaponize immigration law against objectionable speech and ideas. Don’t be shocked if something similar happens when these newest visa revocations are challenged in court.
Brad Polumbo is an independent journalist and host of the Brad vs Everyone podcast.
